Raider and Raider

FAMILY COURT OF AUSTRALIA

RAIDER & RAIDER

[2012] FamCA 820

FAMILY LAW – CHILDREN – where there is a significant degree of conflict between the parties – where the children are currently aged 14 and 12½ years – where the children have expressed a desire not to spend time or communicate with the father – where the children have not communicated with the father in over a year – whether it is in the children’s best interests to spend time with their father – where orders made that the children spend time with the father at their request.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Raider

RESPONDENT:

Mr Raider

INDEPENDENT CHILDREN’S LAWYER:

Dooley Solicitors

FILE NUMBER:

BRC

4124

2008

DATE DELIVERED:

14 September 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

7 September 2012

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Cameron

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Dooley Solicitors

Orders

IT IS ORDERED THIS DAY THAT

The Orders made by consent on 1 July 2010 be discharged.

IT IS FURTHER ORDERED THAT

Parental Responsibility

The presumption of equal shared parental responsibility prescribed by the Family Law Act 1975 (“the Act”) BE DECLARED rebutted in the best interests of the children J born … June 1998 and M born … March 2000.
The mother shall have “parental responsibility” for each of the children, to the exclusion of the father, in respect of “major long-term issues” as that expression is defined in the Act, SAVE THAT prior to the mother making the sole ultimate decision about each such major long-term issue she shall:
a.Advise the father in writing of the nature of the decision to be made and matters she is considering affecting that decision;
b.Invite the father to provide his succinct written input to that decision;
c.Make the decision having considered the father’s input;
d.Inform the father of her ultimate decision in writing.
The mother shall have “parental responsibility” for each of the children, to the exclusion of the father, with respect to all issues that are not “major long-term issues” as defined in the Act.
Notwithstanding the preceding paragraphs of this Order, the production by the father of a copy of this order shall provide sufficient authority and direction to any school, doctor or other treating health practitioner, or the President or Secretary of any sporting or extracurricular body connected with all such activities participated in by the children, to provide to the father upon request all such information about each of the children as might reasonably be requested by the father.

Live With, Time, Communication and Facilitation of Relationship

The children shall live with the mother.
The children shall spend no face-to-face time with the father save as they might from time to time request.
The father shall be at liberty to communicate with the children:
(a)by e-mail at all such reasonable times as he might choose;
(b)by text message to the mobile phone of each of the children at all such times as he might choose;
(c)by letter or card at all such times as he might choose and to forward to the children, via post, any birthday, Christmas or other gifts.
The mother shall forthwith advise the Independent Children’s Lawyer, for communication to the father, of the children’s residential and postal address and shall advise the father in writing of any changes to either or both within 5 days of such change occurring.
The mother shall provide to the Independent Children’s Lawyer within 7 days of the date of this order, for communication to the father, a mobile phone number or numbers, an email address and all other such details as might be necessary so as to permit the children and the father to communicate pursuant to these orders.
The mother shall provide to the father any additions or changes to the said phone number(s) and/or email address(es) within 7 days of any such addition or change.

AND IT IS FURTHER ORDERED THAT

All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
Following the expiration of the Appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
The Independent Children’s Lawyer is discharged subsequent to the completion of her obligations pursuant to these orders and upon the later of the expiration of the appeal period or the hearing of any appeal.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Raider & Raider has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4124 of 2008

Ms Raider

Applicant

And

Mr Raider

Respondent

REASONS FOR JUDGMENT

The parties to these parenting proceedings have been litigating in this Court in one form or another for virtually the entire seven years or so that they have been separated. At that time, their children J (born in June 1998) and M (born in March 2000) were aged about seven and five.
Parenting orders (apparently interim) were made by Burnett FM in March 2009. Contravention proceedings at the suit of the father were heard by Barry J on 14 January 2010. Final parenting orders were made by consent before Bell J on 1 July 2010, consequent upon the mother’s intended relocation to Sydney (the mother and children were living at N at that time; the father was, and remains, in South East Queensland). Further contravention proceedings, again at the suit of the father, were heard by Forrest J on 17 June 2011. It appears uncontroversial that there have been 14 separate contraventions alleged by the father against the mother.
The father has not spent face-to-face time with the children for some two years and last spoke with them in late June 2011.
The instant proceedings devolve from stated proposals on the part of the mother that she have sole parental responsibility for the children; that there be telephone time but that, otherwise “…the children spend time with the father as per the children’s wishes giving the father 28 days notice of the visit.” In the alternative to the latter order, the mother seeks supervised time at a contact centre in Sydney.
While the material filed by the mother might seek orders in those terms, the central issues in this case revolve around the fact that, according to the mother, the children are implacably opposed to spending time with their father. Such is the strength of their feelings, the mother alleges, that having taken them to the airport for a period of ordered time, they refused to board the plane.
It will be observed that the children are now aged 14 and 12 and a half. The father, insofar as he has filed material in these proceedings, seeks the continuation of consent orders earlier referred to. His position, as it transpired at the trial, is, however, slightly more complicated. It was necessary at the outset of the trial to make procedural orders permitting the trial to proceed in the absence of compliance by the self-represented father with the rules. That included permitting the father to make oral application for the orders he sought.
At the outset of the proceedings, no application or response for final relief had been filed by the father. He had filed an application in a case on 2 February 2011, but that did not greatly assist the Court in determining his proposals for final relief. His “affidavit of evidence-in-chief” consisted of two sentences. In those circumstances, and in light of the sad history of this matter, the Court determined that it was nevertheless in the children’s best interest to seek to have the issues between the parties finally determined.
In that regard, I repeat that these parents have effectively been litigating for seven years. Accordingly, I permitted the father to, as it were, shape his case and to formulate his proposals by way of oral application. The mother is self-represented. However, I am entirely satisfied after inquiry of her, that she suffers no prejudice. She confirmed as much. In that regard, it might be observed that the orders and issues outlined by the father came as no surprise to the mother and certainly came as no surprise to either the Court or the Independent Children’s Lawyer. The father’s case, thus presented, was that the consent orders earlier referred to should continue.

History of Proceedings and the Father’s Position

These proceedings are preceded by many years of apparently constant conflict and applications for contravention of orders pursued by the father. At the heart of both those earlier proceedings and these proceedings is an assertion by the father that the mother has consciously manipulated the wishes of the children so as to engender in them antipathy toward the father (and his partner) and to generate the current implacable opposition by each of them to face-to-face time with their father.
These assertions by the father are not without foundation. I propose to have regard to reasons for judgment delivered by Barry J on 14 January 2010 and Forrest Js reasons delivered on 17 June and 23 June 2011 (see section 69ZX(3)(b) of the Act).
In respect of actions by the mother in and about the provisions of telephone communication, Barry J held:
14.I am unable to say that a requisite standard of proof that the mother has contravened the orders, as I have interpreted the orders. I can make a few observations about the phone conversations anyway. I find it disturbing that the mother can sit there in the lounge room, put the phone on speaker phone, and allow her children to tell blatant lies to their father. What sort of message is she giving to those children? The father is saying, “You have got the phone on speaker phone.” “No, we haven’t, no, we haven’t, no, we haven’t.” Clearly, she did. They did. There is other evidence which is equally unflattering to the mother. I can be quite confident that the children have picked up that the safest time for them to be able to speak to their father is Sundays, probably because the mother’s partner has left the property at that stage. However, the mother says the children are free to answer the phone and they do not. I am not prepared to find a contravention in those circumstances.
However, in respect of the father his Honour also held, in a passage, which, as will be seen, finds resonance in the evidence before me some two-and-a-half years later:
15.I will also make this following observation: I have heard a part of the conversation on 20 September recorded on the mother’s mobile phone. How the father spoke to his nine-year-old daughter is appalling. Not only is it inappropriate, it is singularly disgraceful and an apology would be called for. The text of what was said by the father is accurately recorded in the mother’s affidavit.
In a passage that, again, has echoes in the evidence before me, Forrest J records on 17 June 2011:
30.The mother’s evidence is that when the father rang to speak with the children on 5 November, M spoke with him and simply said, “I don’t want to talk to you any more,’ and then hung up the phone. The phone rang again and M answered again, saying, “I don’t want to talk to you any more. Stop ringing us,” and she hung up again. On Monday, 8 November 2010, J answered a phone call from the father and immediately said, “I don’t want to talk to you,” and hung up the phone. The mother says that on 23 November 2010, J told her, when discussing the Christmas visit with his father, “I will do whatever I can, even if I have to push you out of the way so I don’t get on that plane.” And further, “If I land [in Queensland] and I see him there, I’m going to punch him and take off.”
In the “sentencing proceedings”, on 23 June 2011, Forrest J records the father as seeking a term of imprisonment for the mother as a result of the contravention established before his Honour. His Honour records:
6.Mr [Raider] submitted that the contraventions should be found by me to demonstrate a serious disregard by [Ms Raider] of her obligations under the primary order. He submitted that [Ms Raider] has a history of non-compliance and that these three contraventions that I have found her responsible for are just further examples of her unwillingness to abide by orders of the Court and to facilitate and encourage meaningful relationships between the two children and him.
7.At the hearing of the contravention applications, Mr [Raider] actually submitted that if I found Ms [Raider] had contravened the orders as he alleged that I should sentence her to a term of imprisonment, at least weekend detention. In the alternative, he submitted that I should make an order that the mother relocate with the children from Sydney back to N where they have previously lived so as to make it more convenient for him to spend time with the children.
A crucially important aspect of those proceedings, and the proceedings before me, was central to his Honour’s ultimate determination on 23 June 2011 that the mother “be dealt with, pursuant to subdivision E of the division 13A of Part VII of the Act.”
13.Although I found that [Ms Raider] had no reasonable excuse for contravening the obligations imposed upon her by the order relating to the itinerary and the order relating to telephone communication between the children and the father, I’m nevertheless conscious of the fact that during the month of November 2010, the mother was dealing with J in circumstances where he was reporting to his school teacher suicidal ideation and had been referred by the school counsellor to the Youth Mental Health Service for assessment and counselling. Although I did not find that she had a reasonable excuse for contravening the orders as she did, I do consider that those circumstances certainly mitigate against the finding that her contraventions were so clearly wilful and deliberate that they constitute more serious contraventions.
Each and all of those matters, together with the fact that the parents’ bitter conflict has now stretched over some seven years, has caused, understandably enough, frustration on the father’s part. He says, in effect, that he has done nothing wrong and that the mother has taken a number of steps, the net effect of which has been to, effectively, destroy the relationship between he and the children. As will emerge, I consider that he significantly downplays his own role in this and is significantly lacking in insight in that respect.
The combination of these factors, though, presented themselves in stark form during the proceedings when the father was being cross-examined. I propose to shortly quote the relevant part of the evidence in full. In my view, it is starkly illustrative of a number of relevant considerations. First, it is demonstrative of the wholly fractured and, in my view, irreparable relationship between the parties. As each of the parties effectively concede, they have no capacity whatsoever to cooperate or communicate. They are incapable of doing that which section 65DAC of the Act requires of those who share parental responsibility.
The manifestation of conflict, particularly bitter longstanding conflict, is antithetical to the best interests of children. The presumption of equal shared parental responsibility is rebutted in the best interests of these two children.
The transcript soon to be quoted is also illustrative of other important matters. It might be thought that, in light of the history just outlined, a measure of exasperation and impatience on the part of the father could be expected. Yet the quintessence of all parenting in the best interests of children is the need to place even understandable feelings secondary to the needs of one’s children.
In the exasperation the father’s evidence expresses, it says much about his attitude to the children and the responsibilities of parenthood. It also says much about his insight. The proceedings are not, and never have been, about what is fair between the parents, but rather what is best for the children.
It is also critical to observe that the evidence about to be quoted comes against a background, which includes the vitally important consideration that J has expressed ideas about self-harm. Importantly, the best evidence of that concern comes not from the mother, but from a teacher. As is obvious, the prevention of any harm, much less harm of that dimension, is vital to any decision made by this Court and the interests of parents are secondary to it.
Forrest J referred to the father’s evidence before him in respect of this vitally important matter as follows and I propose to quote it prior to quoting from the transcript:
26.The mother’s application for interim orders that was filed in the Local Court at [Sydney Suburb 1] in November last year was also before me. In that application, she seeks orders suspending those provisions of the final order made by consent on 1 July 2010. The father, Mr [Raider], made clear his opposition to any such order, continuing to assert that the children have a good time when they are with him and that all that needs to happen is for the mother to be forced to make the children go to spend time with him, as ordered. The father’s continued submission that the evidence of [J]’s suicidal ideation and the matters he reported to the Youth Mental Health Service in New South Wales simply reflect the pure influence of his mother, prima facie, I simply cannot accept. In the circumstances of the determination of this matter on an interim basis, bearing in mind that my paramount concern must be the best interests of the children, I am satisfied that a cautious approach should be taken. Accordingly, I determine that interim suspension of the orders requiring the children to go and spend holiday time with the father was in order. Indeed, I made such an order on 23 June 2011. I did not suspend the order in respect of telephone communication on the Monday and Friday nights of each week and I made it clear to the mother and Mr [Raider] that such orders still apply, and I expect them to be complied with.
That finding accords with my own impressions of the father’s evidence.
I do not suggest for a moment that the father is indifferent to concerns about matters vital to his son’s safety and well being. I consider that he loves his children dearly and cares about them deeply.
However, the father cannot see beyond the attribution of J’s feeling as being wholly shaped by the mother. J is a 14 year old boy. His feelings may, indeed, have been shaped in part by his mother but I do not accept that to be the whole explanation for his tragic overt cry for help. Sadly, I consider that living under the shadow of continual conflict between his parents has shaped, and continues to shape, his emotional life. The father’s evidence also says much about his capacity for insight and his capacity to put the slights upon him – as in my view there indeed have been – in second place behind the primary concerns for the well-being of his children.

Transcript of the father’s evidence: “what should happen”

The father’s evidence to which I have been making reference, reveals much about the relevant statutory considerations by which best interests are to be determined is as follows.
Mr Cameron: You were ordered to undertake a post-parenting programmes course. Have you done that.
Mr [Raider]: No.
Mr Cameron: Why not.
Mr [Raider]: Like I said, I am over with it. And honestly, I live in a happy family, there are four of us in a family, 2 children, both children are in stellar programmes at their schools...
Mr Cameron: I thought Mr [Raider] from the exchange that just took place between you and his Honour, you got up and physically walked out of the witness box and then went and sat back down and said “do you want me to wipe my hands of it”.
Mr [Raider]: Well that’s where it’s getting to. I have been accused of hitting the children. I was accused of touching my daughter, when in fact, it has been recorded to Docs about G, because my daughter informed my partner’s daughter that that is what is going on and has not been followed up.
Mr Cameron: Do you accept that there is a high degree of conflict between you and Ms [Raider] in this case.
Mr [Raider]: I don’t have anything, I don’t really care if she breathes or not, I’ve got no conflict with her, I don’t talk to her.
Mr Cameron: Do you think that that might be part of the problem for the kids.
Mr [Raider]: You want to go back to who’s got whose phone number. She has my phone number, she has my details. I do not have any of her details. Every time I do have her details she changes them. How can I talk in a civil way to someone like that.
Mr Cameron: Do you ever think that you need to check your attitude as well.
Mr [Raider]: I don’t have an attitude. I don’t like being dragged to Brisbane twice a year for the same thing and Ms [Raider] continuously gets away with it and these children are seeing that.
Mr Cameron: Well what’s the answer Mr [Raider] from your perspective.
Mr [Raider]: My answer, like I told last time, if the children aren’t to spend time with me, then they are not to spend time with the mother they are to be taken off Ms [Raider] and given to someone else, whether it’s welfare or whatever and visitational rights.
Judge:So hang on, not for you, not to her, not to you, but, what, put in foster care?
Mr [Raider]: Your Honour, since Ms [Raider] has moved to Sydney, the whole thing has escalated.
Judge:Stop, stop, stop. I haven’t asked you yet why. I need to understand your answer that you gave to Mr Cameron. Is your position that the children, I think you said, not with her, not with me, taken off her. Now what are you saying, that the children should live in foster care or what?
Mr [Raider]: I don’t think they should your Honour. That the legal system should be a legal system, and I think that I was brought up you do the wrong thing you are punished for it
Judge:Hang on, stop, stop, stop. You’ll get a chance to make a speech in a moment. All I am trying to do is clarify the answer that you gave to Mr Cameron, OK. Now, as I understand it, the answer that you gave to Mr Cameron is take them off her, take them off me, now I don’t know what that means. Does it mean that it is better for the children to be in foster care, and if not what do you mean take them off …
Mr [Raider]: Well, I don’t think it is better to be in foster care, but seeing that everything read here today, even though it was false, most of the stuff from Ms [W] has been false, being conveyed from [the mother] or her mother that I am a bad person and I know for a fact that [the mother] is a bad person, her mother included, is very standover-ish. There’s been various times during [the mother]’s illness before she had the transplant that she lost her temper and could not stop smacking the children continuously.
…
Mr [Raider]: I don’t think she’s a fit mother.
Judge: I understand that.
Mr [Raider]: The lies, the deceit, the rest of it. I’ve been portrayed the same way, all I’m trying to do is see the children. All I’m trying to do is be fair.
…

J’s statements about self harm

The need to protect children from harm of all types is now statutorily mandated as a Primary Consideration, but always has been the primary concern of this Court.
J was referred to the Sydney South West Area Health Service by his school deputy principal in 2010 when he was in grade six. The referral form (exhibit ICL3) records:
Presenting Problems
Disclosure to teacher of suicidal ideation, including statement that he had looked for a rope the night before and said ‘would have done it if he had found it’. Through subsequent session with counsellor he admitted ‘thinking about it before’.
Some support for the father’s position that part, at least, of the cause for J’s problems can be laid at the feet of the mother, her household and the attitudes toward the father exhibited within it can be found in the assessment by that same health authority:
[J] has experienced ++ change recently, i.e. moving to Sydney, leaving his friends, being bullied at current school, living with [G] [the mother’s partner] who is ++ authoritarian, etcetera … and he is finding it difficult to cope, withdraws and adjust with new environment … [mother] reported that her main concern was if [J] was made to see his [stepfather] [Mr Raider] he will hurt himself as he had threatened this in the past.

The children’s views

Each of the children is at an age where this Court should hear them and listen carefully to their views. This Court intends to listen to what the children have to say, communicated in a manner consistent with their best interests. However, neither of the children is, in my view, at an age where their views are necessarily determinative of orders that should be made in their best interests. Plainly, that is the case in respect of younger children but it also applies with respect to children who, although relatively mature, are not yet at a stage where they can, themselves, determine what is in their best interests. In my view, that applies to each of the children in this case.
I have indicated that the views of the children should be communicated in a manner sensitive to their needs and, as is frequently the case, the best source of that is evidence independent of the parents. That is all the more so where the parents are in very significant conflict and find every reason to act out that conflict.
J consulted a psychologist, effectively I gather, as a result of referrals made via the school in response to behavioural problems exhibited by him. The psychologist, Ms B, prepared a report which was subsequently sent to solicitors acting for the mother. That report formed part of the documents produced pursuant to the subpoena from the Sydney South West Area Health Service (exhibit ICL3). Ms B says:
10.[J] mentioned that his father rang every Friday and that he was all right unless he had been drinking and went ‘psycho’. He would threaten to take the children [from] their mother. He said that his little sister will not talk to him and says she hates him.
…
12.In September 2008 [J] said that his father’s phone conversations were increasingly hard and that his father was angry all the time as the children have not been up to stay with him. [J] said that this could be all right if his father would ‘settle down and be normal’ but that he was scared of him. He said that he can remember his mother and father.”
The father produced to the Court, and, ultimately, tendered as an exhibit, entries from a diary kept by M. It is of some significance to note that the diary was in the possession of the father. The diary, on its face, appears to be only a record of time spent between M and the father. The entries in the diary were put by the father to the family consultant, Ms W, in the witness box. Ms W indicated that the matters contained there did not alter her opinions; they were, she said, an expression of what M was feeling at the time, rather than a more considered “or expansive” exposition of her feelings in a broader sense.
I accept that opinion. But, examination of the diary entries also reveals, in my view, other notable aspects. I consider that the entries have a feeling of “rote” about them. For example, almost every entry refers to “having fun” in one form or another. Four consecutive entries on 10, 11, 12 and 13 July use the expression “I had fun”. I find it difficult to accept that M’s entries were made entirely spontaneously and at her own instigation. In saying that, I do not suggest for a moment that the time that M, or indeed J, spent with their father was anything other than enjoyable in the manner in which he describes it, but the diaries are, I think, an unreliable snapshot.
In that respect the father also tendered a number of documents that can be seen to pertain to activities undertaken by the children and him when they were with him, (for example, cinema tickets, museum tickets, bowling and the like). Again, I do not doubt that at the times the father saw the children (essentially, school holiday time) they had a pleasant and enjoyable time together.
Like Ms W, I do not however, place particular weight on that in determining the broader issues in relation to J and M’s emotional and psychological health which, in my view, lies at the heart of the decision to be made in this case.
The views of the children can also be seen manifested in the evidence of the family consultant, Ms W. It might be observed that Ms W’s interviews took place in October 2011 and the father had not seen the children for some time. Troublingly, the father did not make himself available for interviews with the children at Ms W’s request in December 2011.
When I asked the father about that, he indicated that, in light of the pressure that he contends the children had been placed under by the mother, he considered that it would be cruel for the children for him to see them in the context of a family report interview, only to then not see him after that. The father said this about his non-participation as recorded by Ms W:-
54.… He asserted there was no point in attending and that he was not going to waste his time driving up to Brisbane. “They had not seen me for so long. Their mother will have filled their heads with rubbish. I know how it will go.” Mr [Raider] added his opinion was that there should have been orders for him to spend time with the children prior to any observation session.
I consider that the father was honest and genuine in expressing that view but, as a result, the Court has no opportunity to have evidence from an independent expert as the interactions of the children and the father and, equally importantly, what the children had to say about him and with him during the report process. I consider that the father’s fears about what the children might have said in that respect (whether influenced by their mother or otherwise) was a significant component in his failing to participate in those assessments.
The father in these proceedings is not J’s biological father. J was raised for some time in the belief that the father was his biological father but had been subsequently appraised of the truth. I have little doubt, having read both the subpoenaed material from the South West District Health Service and the reports prepared both by Ms W and Ms A (exhibit ICL4), that this is, and is likely to remain, an ongoing issue for J.
Ms W assessed J as being “quietly spoken and thoughtful. Although only 13½, [J] is six foot tall and of a very athletic build.” Ms W comments that he “already has facial hair.”
Ms W records observations of J and his statements as follows:
95.[J] explained he now referred to Mr [Raider] as “[E]” He noted - “He’s not my dad.” Although [J] had known since he was about 10 that Mr [Raider] was not his biological father, [J] explained he had been too scared to call him “[E]” to his face. [J] related - “He would probably jack up and do something - hit, yell, swear at us.”
…
98.When asked to describe recent visits with Mr [Raider], [J] spoke about Mr [Raider]’s anger: “I have tried to stop him being angry. It’s over anything. He gets angry at little things.” [J] was adamant he had not told Mr [Raider] during the September/October 2010 visit that he didn’t want to leave. [J] asserted - “It’s lies. I didn’t say that. I hated going up there.”
99.[J] spoke about feeling frightened by Mr [Raider]’s threats during that last visit: “He made death threats - that he would kill [G] [the mother’s partner], mum and […] [maternal grandmother].” [J] said Mr [Raider] made these threats daily: “Five days till they die, four days, etcetera. I was scared for mum that he would do it.” [J] recalled: “He said they’re bitches and ‘I’m going to kill them.’” [J] recalled [M] was in tears over this and she believed Mr [Raider] could do this.
Ultimately when asked directly about his views, J said:
104.When asked what he would like to say to Mr [Raider], [J] stated, “I never want to see him again. I’m scared of him.
105.[J] was aware Mr [Raider] had suggested Ms [Raider] had influenced [J] and [M]’s opinion of him. [J] was adamant – “Its’ not true. We actually don’t want to go. He blames mum and uses her as an excuse.”
106.[J] spoke about the difference since he had not been spending time with Mr [Raider]. “It’s better. I don’t have him stuck in my mind. He was just stuck there. It worries me he would do something to me or [M].”
In respect of M, at paragraph 111 of her report Ms W says this:
111.[M] has also taken to referring to Mr [Raider] as “[E]”. She explained, “It’s because I don’t like him. He locks me in bathrooms and he yells at me and he hurts us.” [M] related that during the last visit Mr [Raider] would lock the bathroom door when she went in and she would have to call out when she was dressed. She had to call about 10 times before he let her out.
112[M] claims Mr [Raider] yelled at her and [J] every night of their visit and accused them of lying. Further, “He calls mum a bitch and he swears at me and [J].” She claims [the father’s partner] joins in with the yelling and accusing them of lying.
Specifically in respect of the diary entries referred to earlier [exhibit F3] Ms W records M as follows:
114.[M] appeared surprised when asked about the July 2010 comment in her diary. She denied having written it. She related, “When I’m up there (at Mr [Raider]’s house) I hate it and I cry myself to sleep every night.” She claims that Mr [Raider] made her smile in the photos he took, but these did not reflect how she felt.
Ms W’s report goes to record M’s ultimate views:
116.When asked what she would say to Mr [Raider] if she could, [M]’s words tumbled out, “That I hate him and never want to see him again and I have a better life with mum and [G], and [G]’s been a better father to me than [E]’s ever been. [G] treats me like his own daughter and I treat him like my own dad.” [M] drew breath and added, “[E] would get really angry and yell if I said that to him.”
117.[M] was aware Mr [Raider] had alleged Ms [Raider] told her what to say. She was adamant that what she said during the interview had been her own thoughts.
118.[M] asked for the Court to be told, “I never want to see him again. Pretty much if I have to go up there I will run away from home.” Her plan would be to run to one of her friend’s houses.
It is important to record, I think, that these are not statements by the children of recent occurrence. The father relied on certain passages from an earlier family report prepared by a family consultant, Ms A on 29 August 2009. Ultimately that family report became Exhibit ICL4.
It is important to record that this report paints a picture of the father (particularly by reference to accounts given by Ms D who was then and remains the father’s partner) different to that painted by the children and mother in these proceedings. In particular Ms D tells Ms A of a positive interaction with her children and her former partner with the father. Ms D also supports the contention that when the children spent time with the father it was positive and enjoyable for them, and that the children “clammed up” when it was time to return to the mother.
Significantly, both children (then, it should be noted, three years younger) made comments similar in effect to what they told Ms W, and in J’s case what he told his counsellor. For example:
44.Asked about what it’s like at his father’s place, [J] said that he “doesn’t like it because I don’t like him”. He said that they don’t get a choice what they do when they arrive, and were “at the beach all day”. [J] said that he does not like Ms [D] because she “goes psycho”. When asked what he meant by this, [J] said that when he and [H] were having breakfast and talking that [H] got into trouble from his mother for dribbling on the plate. He said that she talks to him about the court orders and annoys him, “just says stuff about them”.
45.[J] volunteered that he does not want to see his father, saying that he “yells and swears, hits you – stuff like that”. When they were together as a family [J] said he had seen Mr [Raider] punch walls and “put his fists through stuff”, and had seen his parents shouting at each other. He said that he had also seen Mr [Raider] and Ms [D] “have big fights before”. If he has to go his father’s [J] said, “I will end up doing something stupid and hurting myself.” According to [J] his mother “Is fine if we want to get along with him”.
In M’s case Ms A records: -
50.Asked what sort of people each of her parents are, [M] said her father was “Angry, swears, sometimes yells at someone else”. She said that he yelled at a dog on the road and some people on the beach. When describing her mother [M] said she was “Nice, unless you do something very naughty”.
51.When asked if she knew what her parents were arguing about, [M] said, “Mum’s trying to keep us from seeing him and stuff – once we didn’t want to go with him.” She said this time her mother was trying to convince them it was a good idea to go. [M] said her father had “abused us on the phone” by saying that “Mum and [G] are going to run off to the city and leave you and [J].” [M] thought he meant that her mother and [the mother’s partner] were going to leave them in the middle of the city and said she did not think her mother would.
…
53.If there was anything she would change if she could, [M] said “That dad would just get on with his life and not fight anymore.” Asked about the incident on the weekend when they returned, [M] said she was there and that “everyone was upset”.
It is, I think, important to quote Ms B’s conclusions at some length. I consider her opinions important in understanding the children’s current positions and the considerations that inform their best interests currently. It will be seen that the children’s attitude towards their father has deteriorated in the time since Ms A prepared that report. However, it can also be seen that the dynamics informing that situation can be viewed as more complex than what an overview of the current situation might otherwise dictate.
Ms A said: -
59.From the above it appears that both parents have contributed to the current situation. Although Mr [Raider] claims that the children have no problems spending time with him when they are there, and this may indeed be the case, this does not mean that this is a stress-free situation for them. They have become embroiled in the dispute between their parents to the extent of virtually making a choice that it is easier not to spend time with their father. In this Ms [Raider] has been complicit, and has supported the children if they expressed any wish not to spend time with him.
…
61.In addition, it seems that the children have not been spending a great deal of time with their father on a regular basis prior to this. Even though Mr [Raider] claims it was “almost every three weeks” depending on his work commitments, he agreed that he was not having them in school holidays, and Ms [Raider] thought it was often a few months between visits, although agreeing that he spoke to the children once a week. When [J] started seeing the counsellor, he was already unhappy about the relationship with his father, although, at that stage, it was more about missing him. Some of the ensuing problems may have been avoided if Mr [Raider] had been involved in the counselling for [J], at that stage.
62.It appears that Ms [Raider] made the decision that it was not in the children’s best interests to spend further time with their father about March 2008 after [J] had returned from spending the holiday with his father. Since then and despite saying that she has encouraged the children to go, she seems to have done everything to try and avoid this occurring until the matter went back to Court and the recent orders were made.”
63.Ms [Raider] may have believed that she was protecting the children but the effect has been to make the situation much more anxiety provoking for them. The message it has given the children is that Ms [Raider] believes that their father should not spend time with them and that it is not good for them to do so. This has extended to the paternal grandparents as well. It is difficult to understand what damage may have been done by allowing either Mr [Raider] or his parents to be able to see the children at Christmas 2008, for example, when they turned up at Ms [Raider]’s home. It is almost certain that greater damage was caused to the children by preventing this. Mr [Raider] should also bear some responsibility for this as his frustration at not being able to see the children would more appropriately have been dealt with in the court room.
I observe that the opinions there expressed are entirely consistent with my own assessment of the evidence viewed as a whole. In particular, I have little doubt that the mother has engendered in the children a feeling that time with their father is unlikely to be enjoyed by them and that this has, over time, manifested itself in wholly negative views expressed by the children about their father. I think it highly likely that this has been more conscious than unconscious. To the extent that Ms Raider has done so, she should be ashamed of herself. It is behaviour entirely inconsistent with the responsibilities of parenthood to vulnerable children.
In an opinion entirely consistent with my own impressions of the evidence, and each of the parties in conducting their own respective cases before me, Ms A says:
64.Central to the issues involved in this case is the matter of Mr [Raider]’s anger. Although Mr [Raider] claimed he does not yell or swear at the children from their descriptions of him they see him as an angry person at times. This has probably come from their experiences when their parents were together and argued which is frightening for any child, and also from various incidents which have occurred since, both involving themselves and others.
65.As reported above, Mr [Raider] became frustrated and angry with the writer and it appears likely that he is a person who vents his frustration without too much thought for the consequences. He probably calms down quite quickly as well but in the meantime he has upset the person involved including his children at times more than likely. Ms [B] has seen the children on a number of occasions since December 2007 and this view accords with her comments.
66.If a parent is living with a child and gets angry with them then the situation can be defused. However, in this instance it would tend to fester and probably be magnified. The children have seen anger directed at their mother and they tend to be protective of her. They live with her and have a warm close relationship with her. Although Ms [Raider] may not have directly maligned Mr [Raider], it seems likely that she has allowed the children to do so and even encouraged it to the extent that she agrees with their comments.

As will be apparent from what I have already said, the opinions expressed by Ms A resonates strongly with my own impression of the evidence and the parties presentation before me. I entirely agree, based on the evidence before me, that Ms Raider has allowed the children to malign their father and has “even encouraged it to the extent that she agrees with their comments”.
I consider that there is a significant degree of enmeshment between the mother and the children and that her feelings about the father (which in my view are, essentially, entirely negative) have undoubtedly been communicated by words, actions (or, indeed, silences) on the part of the mother.
With some prescience Ms A (in expressing an opinion about a then potential relocation of the mother and the children says:
73.The question of the relocation is somewhat vexed. Ms [Raider] has said that she would either bring the children to [N] once a month or pay half the air fares although she also mentions elsewhere that Mr [Raider] could afford them. Her track record to date is not good in facilitating time for the children with their father, however, and his commitment seems doubtful. If Ms [Raider] moved to Sydney with the children it would create another hurdle that may provide an excuse why the planned visits would not occur. It is also interesting that Ms [Raider] [and her partner] had discussed moving to Brisbane but had decided against this after there were problems with Mr [Raider].
The prescience of the opinion there expressed some three years ago comes, in my view, from the foretelling of the difficulties that were likely to occur if the mother moved to Sydney as she has done. Ms A “predicted” that the mother’s commitment to providing time between the children and the father would be “doubtful”. I have little doubt that this accurately expresses the mother’s commitment to facilitating a meaningful relationship between the children and their father.
The move to Sydney has indeed, as Ms A predicted, provided “another hurdle” and, in my view, has indeed “provided an excuse why the planned visits would not occur.”
During the course of his evidence and submissions the father suggested another factor may be at play. The mother had a renal transplant some time ago. The father suggests that the mother has indicated to the children that, if they were to travel away from her she may become ill, and he suggests that she has inculcated in them the notion that they have some responsibility for her. This is, of course, speculation on the father’s part, but is based though on his knowledge of his former partner during the time they were together.
I make no finding that the mother has engaged in behaviour of that type but I am strongly suspicious that behaviour of that type may have occurred and I have that in mind when indicating that the mother may have inculcated behaviours on the part of the children that are both subtle and less subtle.

Issues and considerations

If this case, or indeed any parenting case, was to be decided by attributing “blame” or “fault” to the respective parents or, if this case or any parenting case, was to be decided by, as it were, rating parents on a scale one compared to the other and the failures in their parenting responsibilities, results may differ from that which predominates children’s best interests over those considerations.
The clear mandate in the legislation is to make orders in children’s best interests. It is the children’s best interests that must predominate and infiltrate each aspect of the decision to be made by the Court.
In that regard, the position here is, pivotal to that decision whatever might be the rights and wrongs of the parent’s behaviour or its aetiology, the children have made a choice. They are children of an age whose views must now be listened to and analysed with some care. The choice may not in fact be, as they express it to be. That is to say the children may not in fact be saying that their father is “a bad man” and that their mother is “perfect” or “a wonderful mother” or any such.
Rather, the children may, as Ms W very clearly spelled out during the course of her evidence and in her report, be simply making a choice that in the profoundly difficult circumstances in which they find themselves – where their parents are locked in bitter conflict that is to their eyes, and indeed to the eyes of the Court, insoluble – that the best way out for them so as to provide for the maximum amount of stability and emotional and psychological peace for each of them is, in effect, to firmly decide for their parents what should happen in their day to day lives.
It is important to emphasise that the statements just made are not merely findings referrable to the issue of “views” (section 60CC(3)(a)).
They are also findings that these relatively mature children have made a choice for themselves as for what for them – at the present time and by reference to their present circumstances constitute a meaningful relationship and its constituent components.
That brings with it pain for the father but he has said he will be there with open arms when the children reappear in their lives. Two things emerge from this. If the mother has “poisoned” the children as he says she has, she will reap what she sows. Children become adults and, as adults, they will make their own decisions about their parents as every child who has ever lived does. If the relationship between the father and the children is as he says it is, the children will find their way to him. They will be making their own decision at that time, for themselves, based on different circumstances to those which confront them at this time. They will make a decision at that time about what constitutes, for them a meaningful relationship with their father based on the facts and circumstances perceived by them at that time.
Much, though, will depend on what the father does, his attitude to this decision and how he seeks to maintain, to the best of his ability, that meaningful relationship between his children in the interim.
Ultimately I am not prepared to be cavalier about a matter as serious as a teenage boy making statements about self harm. These are not reports made by the mother of statements allegedly made by the child to her. They come from two independent sources. The first is Ms A and the second is a teacher who considered the statements sufficiently troubling to make reference to them in referring J to appropriate assistance.
I reject the assertion by the father that the statements made by J are either the result of lies told by the mother or as a result of the mother coaching or poisoning him to make those statements. I consider that statements by J to be a genuine cry from a confused boy on the cusp of adolescence who is dealing with the knowledge that he does not know and has never known his biological father. That his parents are locked in a bitter conflict and have been for many years, indeed for most of his life; and that that bitter conflict has he and his sister at its centre.
The choice that the children have made is also directly referrable to other matters, which I must mandatorily consider including, for example, the effect of any changes for the children to their current positions. That too, looms as an important consideration in this case, in light of the evidence before me about the apparently implacable opposition evidenced by the children in overt actions when time with their father is mooted or attempted.
Plainly, there are significant practical difficulties associated in the facilitation of time in any event. The children and the mother live in the suburbs of Sydney. The father and his partner and her children live in South East Queensland. Even in the most functional of post-separation relationships, the facilitation of time interstate, in circumstances where as children reach adolescence, they have a number of competing desires and obligations in their lives, creates difficulties. In this case, where there is, and never will be, in my view, a functional relationship between these two parents, those difficulties become almost insuperable.
I am concerned that the mother has little, if any, capacity to facilitate time between the children and their father. The father may well lay at her feet an intention to not effect time and, as it seems to me, the evidence suggests that there is some force in that assertion. Nevertheless, as a matter of practical reality, time between the father and the children needs to be facilitated by her putting the children on the plane at a place a thousand kilometres away from where they will spend time with their father. The notion that the father might spend time in Sydney and there be a changeover between the mother and the father in respect of these two children, who in my view, will feel compelled to act out their opposition to spending time with their father, could hardly be contemplated as being in their best interests.
Ultimately, the application of the statutory considerations on the evidence before me compels me to a finding that the best interests of these children lies in them being permitted to find their own way to their father at a future time of their choosing.
The net result is that, at the present time and in the present circumstances, it is in their best interests that there should be no face to face time between them and their father.

The Orders

Accordingly, in my judgment, I should discharge the orders that currently provide for face to face time. I will also ensure that the current position is properly laid out by framing orders that make it plain to all, including the parents, precisely what the position is. I will make “new” orders for parental responsibility and live with and time.
It will be apparent from what I have already said, that the presumption of equal shared parental responsibility should be rebutted in the best interests of the two children.
The practical reality of the orders that I will make is that the mother will have full time care of the children on a day to day basis. In my view, an order should provide that she have parental responsibility for the children to the exclusion of the father in respect of major long term issues.
However, as I have said in previous decisions, I am of the view that by reason of the definition of “parental responsibility” within the Act (and the lack of definition of “sole parental responsibility” and indeed, “equal shared parental responsibility”) that it is strongly arguable that an order for “sole parental responsibility”, which the mother contends, is an order that excludes from the decision making in respect of the children, any role for the father.
In my view, an order to that effect, represents a significant interference with an individual’s human rights, which may well be justified in the best interests of the children. But, equally in my view, that result ought to be avoided where an order for parental responsibility can accommodate the children’s best interests, but, at the same time, seek to protect the individual’s human rights. It is for those reasons that I make the order earlier referred to in respect of parental responsibility.
The fact that the children will live with the mother, and spend no face to face time with the father, necessarily involves an order that the mother have parental responsibility in respect of issues that are not “major long term issues” as defined in the Act. Consistent with what I have said about the non-abolition of the rights of a parent by reference to orders for “sole parental responsibility”, I consider it in the best interests of the children that their father receive all such information in relation to them, and in particular as to their scholastic progress, educational and sporting progress, or generally and indeed, other extra-curricular activities.
In that regard it should be observed that J is apparently a footballer with some significant talent and I have little doubt that the father would enjoy hearing about his successes in that respect and in my view, plainly should. I simply do not trust the mother to provide to the father that information, nor do I necessarily trust the mother to authorise or encourage the relevant schools, health professions, extra-curricular organisations and the like to provide information to the father.
Accordingly, I will provide that the production by the father of a copy of this order, shall provide, of itself, sufficient authority and direction to any school, doctor, treating health practitioner or the president or secretary of any sporting or extra-curricular body connected with all such activities participated in by the children, to provide upon request by the father, all such information in relation to that as might reasonably be requested.
It will be plain from what I have said that I will make an order that the children will live with the mother and spend no face to face time with the father, save as they might from time to time request.
Equally, however, I am not prepared to make a finding that excludes the father from communication with the children. Indeed, it is important if there is to be a bridge built by him, including engendering the necessary trust in them, such that he will, as he says, be there for them with open arms when they are at an age and where the circumstances are such that they will find their own way to him. There should, then, be a means by which he can communicate freely and openly with the children. Orders for communication need to take account of the realities of the technological age.
Having said that, while I consider it in the best interests of the children that there be the capacity to facilitate communication, I also bear in mind that the continuation of conflict in any form is in my view, antithetical to psychological and emotional health of these children. There needs, then, to be a balance struck between the two. In that regard, the Act instructs me to have regard to orders that, to the extent possible, bring an end, to not only these proceedings but any further proceedings (see s 60CC(3)(l)).
If I order specific telephone times as has occurred in the past, in my view, it will be a battle ground for future conflict. It has been in the past and I consider the prospects of it occurring in the future to be very high. Yet, the absence of lines of communication similar to that will render it difficult for the children to know of their father and to know that in the future he will, as he says (and I accept) warmly welcome them with open arms and to facilitate a means of that occurring.
In that respect, the Independent Children’s Lawyer contends for the following orders:
(3)That the father provide the mother with his telephone number and email address.
(4)That the mother provide the children with the father’s telephone number and email address.
(6)That the father communicate with the children by telephone or email at any time they express a wish to do so and the mother shall facilitate the children to so communicate with the father and shall ensure their privacy when they do so.
In my view, orders expressed in those terms, puts the “onus” on already troubled and conflicted children. Those children, in my view, already bare the emotional and psychological scars of their parents long and bitter conflict.
It seems to me that one means of attempting to deal with this difficulty, is to reduce the quantity of communication and to permit of other contact. Email is a “more passive” form of communication. It seems to me that there should be the capacity for the father to email the children. Of course, in the current circumstances and by reason of the facts to which I have earlier referred, he might expect that he receives either no response or a negative response.
Whether he continues to email the children in light of those reactions, which might be anticipated, is of course entirely a matter for him. But if as he says, he wishes to maintain the prospect of them coming to him at a later time when circumstances change, he might well consider it appropriate and beneficial to do so. The orders will, then, provide for the father to communicate with the children by email and text message and by letter or card at all such time as he might choose, including the provision of gifts.
The orders will also provide that the mother shall advise the Independent Children’s Lawyer for communications to the father, the requisite details so as to facilitate the orders being carried into effect. In that respect, the orders will provide for the provision of mobile telephone numbers. That is so there can be communications by (and to) the father via text.
I have not made specific provision for there to be telephone contact between the father and the children upon those telephone numbers (or indeed, at any residential telephone numbers which the mother may have) for the reasons earlier identified). It seems to me antithetical to the peace which is hoped these orders will achieve for the children if telephone time is to be a future battle ground for both the parties and the children. Plainly enough, if the father chooses to text the children and at some future time they choose to contact him via their mobile phones, then that is of course entirely a matter for them. I would sincerely hope that in time they will do so.
I conclude these reasons by saying that the father may well, in light of the orders I have made, choose to do nothing; I fear he will see orders of the type that I have made as “a win” for the mother. Given the findings that I have made in respect of her conduct, his feelings in that respect can be seen as understandable.
However, it is my duty to give primacy to the best interests of these two children and it seems to me, what they need more than anything else, is for the conflict between their parents to end for them and for them to find their own peace in a psychological and emotional sense, as a result.
I sincerely hope that the father does not view the orders in the manner to which I have just referred and perseveres to seek, via the means by which the orders provide, to continue to hold a bridge open so that at some future point in time the children make their own way to him and establish for themselves what they consider to be an appropriate meaningful relationship between them and their father.
I order accordingly.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:

Date: 14 September 2012

[2012] FamCA 820

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